COVER STORY Anti-discrimination law validates Safe Schools
by Terri M. Kelleher
News Weekly, December 3, 2016
Roz Ward, the main architect of the Safe Schools program and director of the Safe Schools Coalition Victoria, which is implementing the program in Victorian schools, has said the controversial program is simply teaching students what is enshrined in the law.
In an interview with journalist Jill Stark in The Saturday Paper on November 6, 2016, Ward is quoted as saying “much of the ‘contested gender theory’ conservatives want removed from Safe Schools content is actually grounded in Australian anti-discrimination legislation”.
She added: “The law says that your gender identity is protected and is not based on the sex you’re assigned at birth or any medical interventions … That’s not ‘a crazy gender theory’. I didn’t make that up. That’s not my idea. That’s not what I learned in gender studies – that‘s the law.”
Australian anti-discrimination laws do protect self-defined gender identity with or without regard to a person’s sex at birth and whether with medical intervention or not.
The federal Sex Discrimination Act and the Tasmanian Anti-Discrimination Act define “gender identity” as “the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth”.
The Victorian Equal Opportunity Act defines “gender identity” and the South Australian Equal Opportunity Act defines “chosen gender” as the identifying on a bona fide/genuine basis by a person of one sex as a member of the other sex by assuming characteristics of the other sex “whether by means of medical intervention … or otherwise”.
The NSW and Queensland Anti- Discrimination Acts protect a person “who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex …” There is no requirement of sex affirmation treatment or surgery.
Similarly, in Western Australia the Equal Opportunity Act and in the ACT the Discrimination Act simply require a person to identify as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex with no need for sex affirmation treatment or gender re-assignment surgery.
Self-defined gender identity is also being recognised in government records and documentation such as birth certificates, passports, tax office and ABS records.
In Victoria, the Births Deaths and Marriages Registration Amendment Bill 2016 proposes to allow “any other sex” as well as male and female on birth certificates. It also proposes a person be able to choose to change their sex from male to female (or vice versa) without medical intervention or surgery.
A similar bill is proposed in South Australia and in the ACT the Births Deaths and Marriages Registration Act allows a person to change their sex on their birth certificate if a doctor or psychologist provides a statement that they have had “appropriate clinical” (not necessarily “medical”) treatment. Gender reassignment surgery is not required.
That the antidiscrimination laws do make self-defined gender identity a protected attribute does not mean this is not “crazy gender theory”. It means the law has adopted “crazy gender theory” and there is a serious question to be answered – should it do so? And do so at the expense of those who do not accept this “crazy gender theory” and who are therefore at risk of complaints of discrimination?
And does it mean that children and young people in schools, through extreme sex-education program such as Safe Schools, should be taught that gender is how you feel and you can choose what gender you “identify” as, regardless of your biological sex?
The “contested gender theory” in the extreme Safe Schools sex-education program does appear to reflect the definition of self-defined gender identity in the anti-discrimination laws. And such laws may push such sex education into faith-based schools if the religious exemptions are restricted or repealed.
In Victoria right now the Equal Opportunity Amendment (Religious Exemptions) Bill 2016 to so restrict the religious exemptions is before Parliament. The question is, do the anti-discrimination laws require this to be taught to children in schools – and, if so, should this be so?
Discussing the idea of self-defined gender identity may not matter so much in academic discourse or everyday discussions. That’s freedom of speech. But it does matter – very much – when it comes to whether children and young people should be taught this in schools or where it is the measure of whether a person has committed an offence under the law.
The whole area of sexual orientation and gender identity in anti-discrimination laws needs urgent and thorough review.